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Author: 


Lee,  Blewett 


Title: 


The  thirteenth 
amendment  and  the 

Place: 

Chicago] 

Date: 

1917] 


?^'/^<7/^-  9 


MASTER   NEGATIVE  * 


COLUMBIA  UNIVERSITY  LIBRARIES 
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The  thirteenth  amendment  and  the  general  railway 
strike,  by  Blewett  Lee  . . .    [Chicago  ?  1917] 

cover-title,  20  p.    25'". 

"Reprinted  from  the  Virginia  law  review  for  March,  1917  ..." 


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/"]     i36bl,  A 17-412 

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THE  THIRTEENTH  AMENDMENT 


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AND  THE 


GENERAL  RAILWAY  STRIKE 


BY 

BLEWETT  LEE 

Chicago,  III. 


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LIBRARY  OF  CONQrtEl..  ..ro  A17^;j, 


Reprinted  from  the  'Oirginia  Law  Review  for  March,  1917, 
published  by  the  University  of  Virginia  Law  Department 


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The  Thirteenth  Amendment  and  the 
General  Railway  Strike. 


IMMEDIATELY  before  the  passage  of  the  Adamson  Law, 
^  September  3,  1916,  a  general  strike  was  called  of  the  rail- 
way trainmen  of  the  United  States,  and  the  country  was  face 
to  face  with  a  situation  which  the  President  said  should  never 
be  allowed  to  occur  again.  The  passage  of  this  statute  is  the 
only  thing  which  prevented  the  country  from  being  plunged  im- 
mediately into  a  situation  of  the  greatest  distress  and  privation. 
Practically  all  of  the  railroad  transportation  would  have  come 
to  an  end  for  the  time  being,  and  the  results  to  the  masses  of 
the  people  would  have  been  more  frightful  than  those  of  war 
itself.  In  two  messages  to  Congress  the  President  has  proposed 
the  enactment  of  a  statute  making  it  an  offense  to  declare  or 
cause  a  lockout  or  strike,  or  to  incite,  encourage  or  aid  in  so  do- 
ing, until  a  Board  of  Mediation  and  Conciliation  shall  have  passed 
upon  the  dispute  and  made  public  its  recommendations.  It  has 
been  stoutly  contended,  however,  on  behalf  of  the  leaders  of 
organized  labor,  that  a  statute  of  this  character  would  be  contrary 
to  the  Thirteenth  Amendment  to  the  Constitution  of  the  United 
States,  forbidding  involuntary  servitude  except  as  a  punishment 
for  crime,  whereof  the  party  shall  have  been  duly  convicted. 
Is  there  in  fact  any  constitutional  impediment  to  constructive 
legislation  of  such  a  character  as  the  President  has  proposed, 
and  which  exists  in  the  Dominion  of  Canada,  in  the  Australasian 
Commonwealths  and  in  almost  every  important  civilized  State, 
with  the  exception  of  the  great  democracies  of  England,  France 
and  the  United  States  ?  In  Holland,  after  the  general  railway 
strike  in  1903,  legislation  was  passed  to  prevent  the  possibility 
of  so  great  a  misfortune  in  the  future.  In  France  in  1910,  the 
general  railway  strike  was  ended  in  six  days  by  the  State  mob- 
ilizing the  strikers  and  requiring  them  to  run  the  trains  as  a 
part  of  their  military  service.  In  England,  since  all  of  the  rail- 
ways are  operated  by  the  State,  the  possibility  of  a  general  rail- 

[1] 


* 


*«a£^*^**»*>««fty&i 


;*»?? 


.  ii&iJ^»»„    . 


■*?.\ 


way  strike  has  been  done  away  with,  at  least  until  the  return 
of  peace.  In  the  United  States,  however.  Congress  has  as  yet 
enacted  no  statute  to  protect  the  public  against  this  great  catas- 
trophe.^ 

Legal  machinery  for  the  peaceable  adjustment  of  labor  dis- 
putes in  industries  generally  is  provided,  and  strikes  and  lockouts 
are  forbidden,  under  penalties,  in  the  Commonwealth  of  Australia, 
New  South  Wales,  South  Australia,  Tasmania,  Western  Aus- 
tralia, New  Zealand  and  Denmark ;  and  in  the  more  limited  class 
of  public  utilities,  such  as  railroads,  similar  machinery  exists  in 
Queensland,  Austria,  Belgium,  Canada,  Holland,  Italy,  Turkey, 
Portugal,  Roumania,  Russia,  Spain,  the  Transvaal  and  Switzer- 
land.- In  Spain  and  Portugal,  tliere  may  be  a  strike  after  public 
notice  has  been  given  for  a  certain  numljer  of  days,  and  a  public 
statement  made  as  to  the  causes  of  the  strike.  In  France,  the 
government  has  a  right  to  mobilize  the  strikers  under  military 
law  and  compel  them  to  return  to  duty,  and  the  same  power  ex- 
ists in  Italy.  In  Germany,  strikes  and  lockouts  are  practically 
prohibited  on  public  utilities ;  the  by-laws  of  the  railway  unions 
sf>ecifically  waive  all  claim  to  the  right  to  strike,  and  a  workman 
who  struck  would  lose  a  position  for  life  in  the  service  of  the 
government.  In  England,  the  adjustment  of  labor  disputes  is 
by  voluntary  arbitration,  for  which  there  exists  full  and  effective 
machinery ;  but  there  is  no  legislation  prohibiting  strikes  or  lock- 
outs. 

A  review,  therefore,  of  the  situation  as  it  exists  amongst  most 
of  the  civilized  countries  of  the  world,  shows  that  in  nearly  all 

'  See  generally,  Railway  Strikes  and  Lockouts,  a  study  of  arbitration 
and  conciliation  laws  of  the  principal  countries  of  the  world  providing 
machinery  for  the  peaceable  adjustment  of  disputes  between  railroads 
and  their  employees,  and  the  laws  of  certain  countries  for  the  prevention 
of  strikes,  published  by  the  United  States  Board  of  Mediation  and  Con- 
ciliation, November  1,  1916,  Washington,  Government  Printing  Office. 
For  a  treatment  of  the  subject  from  its  historical  and  economic  side, 
attention  is  called  to  a  valuable  article  on  "Government  Prevention  of 
Railroad  Strikes."  by  Samuel  O.  Dunn,  Editor  of  the  Railway  Age  Ga- 
zette, appearing  in  the  March,  1917,  number  of  Scribner's  Magazine  (Vol. 
61,    p.    307). 

'  See  Monthly  Review,  U.  S.  Bureau  of  Labor  Statistics,  January, 
1917,  p.  11. 

[2] 


.•  « 


of  the,  and  especially  in  English  speaking  countries,  outside  of 
England  and  the  United  States,  the  laws  forbid  strikes  or  lock- 
outs upon  railroads.  General  railway  strikes  have  been  called 
in  Hungary,  France,  Holland  and  the  United  States,  the  gen- 
eral strike  in  the  United  States  being,  however,  averted  by  a 
partial  surrender  of  the  government  to  the  demands  of  the 
strikers  and  the  passage  of  a  law  requiring  the  employers  to  in- 
crease the  w^ages  of  certain  employees,  including  some  of  those 
already  most  highly  paid,  provision  being  made  for  inquiry 
afterwards  as  to  the  merits  of  the  settlement. 

It  is  plain  that  the  Thirteenth  Amendment,  when  it  says : 

"Neither  slavery  nor  involuntary  servitude,  except  as  a  pun- 
ishment of  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction." 

has  reference  to  the  compelled  labor  of  individuals.  There  is 
nothing  in  the  Amendment  which  guarantees  any  right  of  em- 
ployees to  conspire  together  to  quit  the  service  of  an  employer 
all  at  the  same  time.  The  Amendment  certainly  contains  no 
guarantee  of  a  right  to  destroy  the  business  of  an  employer  by 
concerted  action.  At  the  most,  it  can  mean  nothing  more  than 
the  right  of  an  individual,  acting  alone,  to  quit  work.  The  right 
to  strike  is  the  right  to  quit  work  in  concert  by  agreement,  and 
this  certainly  the  Thirteenth  Amendment  does  not  cover.  The 
right  of  a  man  to  cease  labor  which  is  distasteful  to  him,  by  in- 
dividually quitting  his  employment,  is  one  thing,  and  an  agree- 
ment that  everybody  shall  lay  down  their  tools  at  once,  is  another. 
The  Thirteenth  Amendment  does  not  doom  us  to  perpetual  in- 
dustrial anarchy.  In  any  employment,  public  or  private,  it  would 
be  possible  to  substitute  the  orderly  process  of  hearing  and  judg- 
ment of  a  tribunal  for  the  lawlessness  of  civil  war  between 
capital  and  labor. 

In  case,  however,  of  an  employment  in  which  the  public  has 
an  interest,  like  that  of  a  railway  trainman,  the  analogy  of  the 
soldier  or  sailor  in  public  employment,  or  of  the  seaman  in  pri- 
vate employment,  is  very  persuasive.  It  is  submitted  that  the 
service  of  an  interstate  carrier  may  by  statute  be  treated  as  an 
enlistment   in   which  men  may  be   required  to   serve   out   their 

[3] 


3f 


I   1 


terms,  or  at  least  stay  at  their  posts  until  their  places  can  be  filled. 
In  the  case  of  the  seaman  on  a  ship  engaged  in  private  service, 
it  is  a  sufficient  justification  that  the  service  is  of  such  public 
imix)rtance  that  he  will  not  l)e  allowed  to  desert  it.  Ships  must 
sail,  and  new  sailors  are  not  always  available.  Engineers  must 
not  leave  their  trains  between  terminals.  In  the  case,  however, 
of  a  seaman  engaged  in  the  service  of  a  public  utility,  as  of  the 
railway  trainman,  we  have  an  additional  element  that  in  a  very 
real  sense  the  employment  is  in  the  public  service  and  the  wel- 
fare of  the  State  requires  that  he  must  stay  at  his  post  until 
relieved  from  duty. 

In  the  case  of  I\ol)ertson  ■: .  Baldwin,-^  the  question  was  pre- 
sented of  the  validity  of  certain  sections  of  the  Revised  Statutes 
of  the  I'nited  States,  which  permitted  the  arrest  and  forcible 
return  to  a  vessel  of  seamen  who  deserted  the  ship  before  the 
expiration  of  the  contract  which  they  had  signed  shipping  ar- 
ticles to  perform.  The  defense  was  set  up  that  the  statutes  were 
in  confiict  with  the  Thirteenth  Amendment.  forl>idding  slavery 
and  involuntary  servitude.     Upon  this  point  the  court  said :  ■* 

"Does  the  epithet  'involuntary'  attach  to  the  word  'servitude' 
continuously,  and  make  illegal  any  service  which  becomes 
involuntary  at  any  time  during  its  existence;  or  does  it  at- 
tach only  at  the  inception  of  the  servitude,  and  characterize 
it  as  unlawful  because  unlawfully  entered  into?  If  the 
former  be  the  true  construction,  then  no  one,  not  even  a 
soldier,  sailor  or  apprentice,  can  surrender  his  liberty,  even 
for  a  day;  and  the  soldier  may  desert  his  regiment  upon 
the  eve  of  battle,  or  the  sailor  abandon  his  ship  at  any  inter- 
mediate port  or  landing,  or  even  in  a  storm  at  sea,  provided 
only  he  can  find  means  of  escaping  to  another  vessel.  If 
the  latter,  then  an  individual  may,  for  a  valuable  considera- 
tion, contract  for  the  surrender  of  his  personal  li])erty  for 
a  definite  time  and  for  a  recognized  purpose,  and  subordi- 
nate his  going  and  coming  to  the  will  of  another  during  the 
continuance  of  the  contract; — not  that  all  such  contracts 
would  be  lawful,  but  that  a  servitude  which  was  knowingly 
and  willingly  entered  into  could  not  be  termed  involuntary. 
Thus,  if  one  should  agree,  for  a  yearly  wage,  to  serve  an- 
other in  a  particular  capacity  during  his  life,  and  never  to 


165    r.   S.   215    (1897). 


*   p.   280. 
[41 


leave  his  estate  without  his  consent,  the  contract  might  not 
be  enfoiceable  for  the  want  of  a  legal  remedy,  or  might 
be  void  upon  grounds  of  public  policy,  but  the  servitude 
could  not  be  termed  involuntary." 

The  court  was  also  of  the  opinion  that  if  a  contract  with  seamen 
could  be  considered  within  the  letter,  it  would  not  be  within  the 
spirit  of  the  Amendment  a  case  of  involuntary  servitude,  point- 
ing out  that  from  ancient  times  the  necessity  had  been  recognized 
for  compelling  seamen  to  fulfill  their  obligations  to  carry  out 
the  voyage. 

Mr.   Justice   Harlan   dissented,   and   maintained  the   doctrine 
that: 

"A  condition  of  enforced  service,  even  for  a  limited  period, 
in  the  private  business  of  another,  is  a  condition  of  invol- 
untary servitude."  ^ 

He  made  the  following  distinction  in  regard  to  military  service : 

"The  Army  and  Navy  of  the  United  States  are  engaged  in 
the  performance  of  public,  not  private,  duties.  Service  in 
the  army  or  navy  of  one's  country  according  to  the  terms 
of  enlistment  never  implies  slavery  or  involuntary  servi- 
tude, even  where  the  soldier  or  sailor  is  required  against 
his  will  to  respect  the  terms  upon  which  he  voluntarily  en- 
gaged to  serve  the  public.  Involuntary  service  rendered  for 
the  public,  pursuant  as  well  to  the  requirements  of  a  statute 
as  to  a  previous  voluntary  engagement,  is  not,  in  any  legal 
sense,  either  slavery  or  involuntary  servitude.*'' 

"The  condition  of  one  who  contracts  to  render  personal 
services  in  connection  with  the  private  business  of  another 
becomes  a  condition  of  involuntary  servitude  from  the  mo- 
ment he  is  compelled  against  his  will  to  continue  in  such 
service.*^ 

"If  Congress,  under  its  powder  to  regulate  commerce  with 
foreign  nations  and  among  the  several  States,  can  author- 
ize the  arrest  of  a  seaman  who  engaged  to  serve  upon  a 
private  vessel,  and  compel  him  by  force  to  return  to  the 
vessel  and  remain  during  the  term  for  which  he  engaged, 
a  similar  rule  may  be  prescribed  as  to  employees  upon  rail- 
roads and  steamboats  engaged  in  commerce  among  the 
States."  «     - 


'  P.  292. 
'   P.   301. 


"   P.   298. 
'  P.   302. 


[5] 


It  may  be  observed  in  the  illustration  which  Mr.  Justice  Harlan 
puts,  that  public  carriers  engaged  in  commerce  among  the  States 
and  railway  trainmen  in  their  employ  are  not  carrying  on  a  pri- 
vate business,  and  that  the  ver>'  public  nature  of  their  business 
makes  the  case  like  the  case  of  a  soldier  or  sailor,  enlisted  in  the 
army  or  navy  of  the  United  States,  to  such  an  extent  that  Con- 
gress can  by  law  compel  the  employee  to  fulfill  his  engagements 
when  necessary  in  the  interest  of  the  public  safety  and  welfare. 
Congress  can  fix  the  rates  of  railroads.  It  can  also  keep  rail- 
roads going. 

That  this  presents  a  real  distinction,  was  recognized  by  Mr. 
Justice  Harlan  himself  in  delivering  the  earlier  opinion,  in  the 
Circuit  Court  of  Appeals  for  the  Seventh  Circuit,  in  the  case  of 
Arthur  z'.  Oakes,"  where  an  injunction  was  sought  against  the 
employees  of  the  receivers  of  the  Northern  Pacific  Railroad 
Company,  "from  so  quitting  the  service  of  the  said  receivers, 
with  or  without  notice,  as  to  cripple  the  property  or  prevent  or 
hinder  the  operation  of  said  railroad."  In  this  case  the  court 
held  that  it  was  contrary  to  the  practice  of  a  court  of  equity  to 
compel  the  performance  of  personal  service,  since  the  court  could 
not  undertake  to  supervise  a  continuous  act,  involving  labor  and 
care.     On  this  point,  the  court  also  said :  ^^ 

''It  is  supposed  that  these  principles  are  inapplicable  or  should 
not  be  applied  in  the  case  of  employees  of  a  railroad  com- 
pany, which,  under  legislative  sanction,  constructs  and  main- 
tains a  public  highway  primarily  for  the  convenience  of  the 
people,  and  in  the  regular  operation  of  which  the  public  are 
vitally  interested.  Undoubtedly  the  simultaneous  cessation 
of  work  by  any  considerable  number  of  the  employees  of  a 
railroad  corporation,  without  previous  notice,  will  have  an 
injurious  effect,  and  for  a  time  inconvenience  the  public. 
But  these  evils,  great  as  they  are,  and  although  arising  in 
many  cases  from  the  inconsiderate  conduct  of  employees 
and  employers,  both  ecpially  indifferent  to  the  general  wel- 
fare, are  to  be  met  and  remedied  by  legislation,  restraining 
alike  employees  and  employers  so  far  as  necessary  ade- 
quately to  guard  the  rights  of  the  public  as  involved  in  the 
existence,  maintenance  and  safe  management  of  public  high- 


'  63  Fed.  :nO  (1S94). 


'"   Pp.    318,    319. 
[6] 


ways.  In  the  absence  of  legislation  to  the  contrary,  the 
right  of  one  in  the  service  of  a  quasi  public  corporation  to 
withdraw  therefrom  at  such  time  as  he  sees  fit,  and  the  right 
of  the  managers  of  such  a  corporation  to  discharge  an  em- 
ployee from  service  whenever  they  see  fit,  must  be  deemed 
so  far  absolute  that  no  court  of  equity  will  compel  him, 
against  his  will,  to  remain  in  such  service,  or  actually  to 
perform  the  [>ersonal  acts  required  in  such  employments,  or 
compel  such  managers,  against  their  will,  to  keep' a  particu- 
lar employee  in  their  service." 

It  will  be  observed  that  the  court  very  clearly  intimates  that  by 
legislation  the  power  of  an  employee  to  quit  the  service  of  a 
railroad  company  could  be  controlled. 

In  the  case  of  a  private  employment,  such  as  the  service  of  a 
laborer  upon  a  plantation,  the  employee  cannot  be  compelled  to 
labor  as  he  promised  he  would  do.  This  is  a  necessary  inference 
from  the  rulings  which  have  been  made  by  the  Supreme  Court  of 
the  United  States  in  peonage  cases,  the  state  peonage  being  one 
in  which  a  laborer  is  compelled  to  work  out  a  debt.  A  case 
which  is  very  strong  upon  this  subject  is  Bailey  z'.  State  of  Ala- 
bama,^ ^  the  court  holding  that  a  State  cannot  by  statute  create 
a  presumption  that  the  person  who  contracts  to  labor  and  thereby 
receives  advances  from  his  employer,  and  abandons  the  service 
without  refunding  the  money,  prima  facie  intends  to  defraud  his 
employer,  and  that  if  the  jury  finds  that  such  is  the  case,  can  be 
punished  by  imprisonment  in  the  county  jail.  For  a  convict  to 
be  compelled  to  work  out  a  fine  by  personal  service  for  a  surety 
who  has  paid  his  fine,  is  peonage  and  involuntary  servitude,  for- 
bidden by  the  Thirteenth  Amendment. ^^ 

In  an  interesting  opinion  by  Attorney  General  Moody,  after- 
ward Justice  of  the  Supreme  Court  of  the  United  States,  ren- 
dered for  the  guidance  of  the  Panama  Canal  Commission,  he 
says :  ^^ 

''I  have  no  hesitation  in  saying  that  any  person  held  to  labor 
or  service  against  his  will,  although  he  may  have  voluntarily 


"  219   U.   S.   219    (1911). 

"*  United  States  v.  Reynolds  and  United  States  v.  Broughton,  235  U. 
S.  133,  150  (1914). 

"  25  Op.  Atty.  Gen.  474,  477. 

[7] 


contracted  to  submit  himself  to  such  control,  is  in  a  condi- 
tion of  involuntary  servitude  within  the  meaning  of  the 
Constitution." 

He  pointed  out,  however,  that  there  were  exceptions  in  the  case 
of  deserting  seamen,  children,  wards,  soldiers  and  sailors.  He 
also  said :  ^"* 

**A  laborer  may  agree  to  serve  for  a  specified  time,  and  is  lia- 
ble for  damages  for  the  breach  of  his  contract,  and  may,  in 
certain  extreme  cases,  be  made  by  law  punishable  for  the 
willful  abandonment  of  his  labor.  But  when  he  is  held  by 
compulsion  of  law  or  force  to  complete  the  labor  which  he 
has  engaged  to  perform,  he  is  thereby  held  in  a  condition  of 
involuntary  servitude." 

All  of  the  illustrations  used  by  the  Attorney  General  show,  how- 
ever, that  he  has  in  mind  private,  not  public,  service  on  the  part 
of  the  employees.  There  is  no  constitutional  right  of  the  em- 
ployees to  close  the  Panama  Canal  by  a  concerted  quitting  of 
work. 

Professor  Freund  points  out  ^^  that  a  number  of  States  have 
made  it  a  misdemeanor  for  railroad  engineers  or  conductors, 
in  furtherance  of  a  strike,  to  abandon  their  locomotives  or  trains 
elsewhere  than  at  the  place  of  destination,  and  the  author  reaches 
the  final  conclusion  that  in  a  business  affected  with  a  public  in- 
terest, the  violation  of  a  contract  of  service  which  is  essential  to 
the  carrying  on  of  the  business,  may,  as  a  matter  of  constitu- 
tional power,  be  punished. 

In  the  case  of  Butler  z'.  Perry,^*^  it  was  held  that  the  statute  of 
Florida  requiring  every  able-bodied  man  to  work  on  the  public 
roads  for  six  days  in  a  year,  was  constitutional.  The  court 
pointed  out  that  from  the  earliest  times  in  English  law,  a  man 
could  be  compelled  to  march  against  the  enemy  and  to  repair 
roads  and  bridges,  and  that  nowhere  had  laws  requiring  labor 
upon  public  roads  been  regarded  as  involuntary  servitude.  It 
will  also  be  observed  that  a  man  who  works  on  the  roads  gets 
no  pay  whatever  for  the  service.     His  employment  is  public  and 

'*  P.  482. 

"  Freund,  Police  Power  (1904),  §  452. 

"  240  U.  S.  328   (1916). 

[8] 


X  . 


•»       • 


he  performs  his  duties  as  a  citizen.  If  the  public  necessity  re- 
quired it,  could  not  the  citizen  be  compelled,  not  only  to  build 
a  road,  but  to  operate  it  as  well,  whether  he  had  promised  to  do 
so  or  not?  Has  the  arm  of  the  nation  grown  so  weak  that  it 
cannot  draft  men  to  operate  the  railroads  of  the  country  in  case 
of  necessity,  even  in  time  of  peace? 

In  considering  the  duty  of  a  seaman  not  to  desert  his  ship,  it 
should  be  borne  in  mind  that  the  owners  of  general  ships,  carry- 
ing goods  or  merchandise  for  hire  in  the  usual  course  of  busi- 
ness, are  common  carriers,  so  that,  except  where  a  ship  is  engaged 
in  private  employment,  the  case  of  the  seaman  is  exactly  similar 
to  that  of  the  railroad  employee  engaged  in  transportation.  This 
analog}^  fails  in  the  case  of  a  ship  chartered  for  special  cargo, 
and  which  does  not  hold  itself  out  as  carrying  goods  for  the 
public,  although  indirectly  it  is  still  a  matter  of  great  public  im- 
portance. In  Robertson  z'.  Baldwin  ^"^  it  does  not  appear  that 
the  ship  was  even  a  common  carrier. 

We  are  apt  to  forget  that  even  in  times  of  peace  the  State  has 
the  right  to  compel  our  service  for  the  public  good.  I  have 
already  mentioned  the  case  of  working  the  roads.  Another  ex- 
ample is  where  a  sheriff  summons  us  to  serve  upon  a  posse  comi- 
tatus  to  assist  in  preserving  the  j^eace.  It  is  a  misdemeanor  to 
disobey  the  summons  of  a  sheriff.  A  peace  officer  has  the  right 
to  summon  bystanders  to  assist  him  in  making  an  arrest,  and  the 
bystander  is  bound  to  respond.  Although  there  is  seldom  oc- 
casion to  enforce  the  law  upon  the  subject,  a  man  may  be  com- 
pelled to  accept  office  and  serve  the  State  even  without  compensa- 
tion. I  venture  to  think  that  the  powers  of  the  United  States  will 
be  found  adequate  to  man  every  train  in  this  country,  if  the  public 
necessity  should  require  it,  and  Congress  should  see  fit  to  ])ring 
its  full  powers  into  action,  and  this  not  only  in  time  of  war,  but 
in  time  of  peace. 

We  are  accustomed  to  the  idea  of  military  conscription,  but 
civil  conscription,  the  compulsion  of  the  citizens  to  satisfy  any 
civil  need  of  the  State,  is  just  as  well  established  by  the  com- 
mon law.     Every  citizen  is  bound  to  render  to  the  State  neces- 


"  Supra,  note  3. 


[9] 


'I 


sary  service,  whether  in  i)eace  or  in  war.  The  sovereign  may 
require  of  the  subject  anything  that  does  not  necessitate  the  sub- 
ject's exile  from  the  reahn.  W'e  have  become  so  accustomed  to 
compulsion  to  sit  upon  juries,  and  compulsion  to  api>ear  as  wit- 
nesses, that  we  hardly  think  of  them  as  being;  in  the  nature  of 
conscription.  In  times  of  coal  famine,  the  State  could  compel 
the  service  of  its  citizens  to  operate  the  mines — nor  is  the  State 
bound  to  pay  compensation  for  the  service. ^*^ 

In  the  case  of  Re  Debs.^^  it  was  a  time  of  peace,  if  it  mav  be 
called  peace  when  the  skies  of  Chicag^o  were  reddened  with  the 
flames  of  burning  freight  cars  and  militia  were  retreating-  before 
the  mob.  The  I'nited  States,  on  its  own  ])ehalf,  entered  the 
courts  and  kept  the  railroads  going  ])y  enjoining  unlawful  in- 
terference with  interstate  commerce  and  the  transportation  of 
the  mails.  The  nation,  itself,  was  not  ashamed  to  use  the  rieht 
of  injunction  for  this  purpose,  and  a  great  President  sent  the 
troops  of  the  United  States  to  the  City  of  Chicag:o  to  maintain 
the  law,  and  enforce  the  orderly  proces.ses  of  the  courts. 

It  is  interesting  to  observe  that  in  tlie  Clayton  Act  of  October 
15,  1914,-*^  supplementing  the  existing:  laws  ag-ainst  unlawful  re- 
straints and  monopolies,  and  for  other  purposes,  while  the  teeth 
of  the  Federal  courts  for  punishing  contempt  of  decrees  made 
in  labor  cases  were  being-  drawn,  exception  was  made  ])y  Section 
24  in  case  of  decrees  in  suits  ])rought  ])y  or  prosecuted  in  the 
name  of  or  on  behalf  of  the  United  States. 

By  the  Act  of  August  29,  1916,-^  it  is  provided  that: 

"The  President,  in  time  of  war,  is  empowered,  through  the 
Secretary  of  War,  to  take  possession  and  assume  control  of 
any  system  or  systems  ji  transportation,  or  any  part  there- 
of, and  to  utilize  the  same,  to  the  exclusion  as  far  as  may 
l)e  necessary  of  all  other  traffic  thereon,  for  the  transfer  or 
transportation  of  troops,  war  material  and  equipment,  or 
for  such  other  purj)oses  connected  with  the  emergency  as 
may  be  needful  or  desirable." 

"  30   Harv.   Law   Rev.   265.   "'Civil   Conscription   in   the   United   States." 

'*   158   U.   S.    5G4    (  1895). 

""  38  Stat.  L.  739;  U.  S.  Comp.  '16,  §  1245d. 

^  C.  418,   Supp.   to   U.  S.   Comp.   Stat..   §    1789a. 

Iiol 


I 


I 


r 


-     I 


Indeed,  Congress  had  gone  much  further  than  this.  By  the  Act 
of  January  31,  1862,^^  it  w^as  enacted, 

'That  the  President  of  the  United  States,  when  in  his  judg- 
ment the  public  safety  may  require  it,  be,  and  he  is  hereby 
authorized  to  take  possession  of  any  or  all  the  telegraph 
lines  in  the  United  States,  their  offfces  and  appurtenances ; 
to  take  possession  of  any  or  all  the  railroad  lines  in  the 
United  States,  their  rolling  stock,  their  offices,  shops,  build- 
ings, and  all  their  appendages  and  appurtenances;  to  pre- 
scribe rules  and  regulations  for  the  holding,  using  and  main- 
taining of  the  aforesaid  telegraph  and  railroad  lines,  and  to 
extend,  repair,  and  complete  the  same,  in  the  manner  most 
conducive  to  the  safety  and  interest  of  the  Government:  to 
place  under  military  control  all  the  officers,  agents,  and  em- 
ployees belonging  to  the  telegraph  and  railroad  lines  thus 
taken  possession  of  by  the  President,  so  that  they  shall  be 
considered  as  a  post  road  and  a  part  of  the  military  estab- 
lishment of  the  United  States,  subject  to  all  the  restrictions 
imposed  by  the  rules  and  articles  of  war." 

It  is  interesting-  to  observe  that  this  statute  purports  to  be  en- 
acted under  the  power  to  estaljlish  post  roads,  as  well  as  under 
the  war  power.  It  might  also  have  been  enacted  under  the  power 
to  regulate  commerce  among  the  several  States. 

The  Canadian  Industrial  Investigation  Disputes  Act  of 
1907  ^^  was  assented  to  on  March  22,  1907.  It  applied  originally 
only  to  mines  and  public  utilities.  The  punishment  of  employers 
for  lockouts,  i)ending  investigation,  is  not  less  than  one  hundred 
dollars  or  more  than  one  thousand  dollars  for  each  day  of  the 
lockout :  -"^  and  against  employees  for  striking,  pending  investiga- 
tion, is  not  less  than  ten  dollars  or  more  than  fiftv  dollars  for 
each  day  of  the  strike. ^^  By  agreement  in  advance,  the  award 
of  the  Board  may  be  made  a  rule  of  court  and  enforcil)le  as 
such.^''*  Since  its  enactment  in  1907,  according  to  the  last  figures 
I  have  seen,  there  have  been  one  hundred  and  seventy-seven  ap- 
plications  for  the  establishment  of  a  Board,  one  hundred  and 


"^  12  Stat.  L.  334. 

=^  Stats.  Canada,  6  &  7  Edw.   (1907),  c.  20,  p.  235. 

«  §  58.  ^^  §   59. 

-«  §  62. 

[11] 


fifty-eight  of  which  were  granted  by  the  government,  and  in  all 
but  nineteen  of  the  cases  where  findings  were  made  they  were 
carried  out  voluntarily.  From  March  22,  1907,  until  October 
18,  1916,  the  Act  averted  eighty-five  out  of  ninety-two  threat- 
ened strikes  on  railroads.  It  is  to  be  noted  that  in  the  Canadian 
Act  the  investigation  is  made  under  oath,  and  it  is  sufficient  that 
either  party  shall  apply  for  it. 

In  the  Xew  Zealand  Industrial  and  Arbitration  Act  of  1904, 
the  awards  are  enforced  against  both  sides  by  financial  penalties, 
which  may  amount  to  as  much  as  two  thousand,  five  hundred 
dollars.  Associations  of  employees  and  workmen  are  incorpo- 
rated.    There  are  similar  laws  in  effect  in  Australia.-' 

A  similar  statute  was  passed  in  Colorado.  April  10,  1915. -« 
The  Colorado  Act  applies  to  industrial  disputes  of  all  sorts.  The 
practical  exi)erience  of  civil  war.  as  a  result  of  industrial  dis- 
putes, has  undoubtedly  had  a  very  persuasive  effect  in  inducing 
the  passage  of  this  Act  in  Colorado.  Incidentally,  it  may  l>e  re- 
marked that  the  great  advantage  of  having  the  award  made  an 
order  of  court  is  this:  there  is  an  impartial  tribunal  always 
ready  to  construe  the  award  when  needed. 

From  the  Monthly  Rcziczc  of  the  United  States  Bureau  of 
Labor  Statisties'^  it  appears  that,  while  the  Trades  &  Labor 
Congress  of  Canada  recently  recpiested  a  rei)€al  of  the  Canadian 
Industrial  Disputes  Investigation  Act.  the  Canadian  Federation 
of  Labor  has  approved  the  provisions  of  the  Act  and  recom- 
mended that  the  enforcement  of  awards  under  it  he  made  com- 
pulsory, and  that  it  be  extended  to  government  emplovees  not 
coming  under  the  Civil  Service  Act,  and  to  all  industries.  The 
scope  of  the  Act  was  also  extended  by  Order  in  Council  to  cover 
disputes  in  industries  producing  war  munitions  of  all  sorts.  The 
Canadian  Minister  of  Labor  is  now  considering  various  improve- 
ments, l>orrowed  in  a  large  measure  from  exi>erience  in  Austral- 
asia, shortening  the  time  of  setting  the  Act  in  operation,  doing 
away  with  the  expense  of  having  a  strike  vote  in  advance,  and 
providing  for  a  secret  vote  by  ballot  before  strikes  are  called.     In 


•^  Independent,  September  4,  1916. 
"  Colo.  Laws,  1915,  c.  180,  p.  562. 
"  Vol.  3,  no.  6,  December,  1916. 


[12] 


; 


«  1 1 


order  to  avoid  controversy,  it  is  possible  that  the  proposed  im- 
provements will  not  be  introduced  into  Parliament  until  the 
termination  of  the  present  war.  Two  of  the  important  new 
provisions  are,  one  that  a  municipality  interested  or  the  Minister 
of  Labor  may  of  his  own  motion  bring  about  the  constitution  of 
a  Board  in  case  of  long  continued  or  serious  disputes  in  any  in- 
dustry, and  another  for  the  reconvention  of  the  Board  wlien 
any  question  arises  as  to  the  meaning  or  application  of  its  rec- 
ommendation.^*^ 

On  September  26th,  1916,  in  an  address  before  the  Grain 
Dealers  National  Association  at  Baltimore,  Honorable  Judson  C. 
Clements,  Interstate  Commerce  Commissioner,  made  the  fol- 
lowing statements : 

*'I  am  led,  after  much  thought,  to  suggest  that  an  effective 
and  just  remedy  will  be  found  in  the  recognition  of  the 
principle  that  those  who  engage  as  employees  in  the  pub- 
lic service  of  the  transportation  companies  are  just  as  much 
in  interstate  commerce  as  are  the  companies  themselves, 
and  that  such  employees  are  affected  in  respect  thereof,  in 
the  same  way  and  to  the  same  extent  as  are  the  companies 
themselves,  with  a  public  interest  which  they  can  no 
more  ignore  than  can  the  transportation  companies.  The 
law  makes  it  mandatory  ujx)n  the  carrying  companies  to 
move  traffic  which  is  offered,  and  they  are  subject  to  the 
process  of  mandamus  to  compel  them  to  do  so.  They  may 
accomplish  this  through  an  organized  corps  of  employees ; 
and  can  it  be  possible  that  the  inanimate  corporation  is 
subject  to  the  law  and  to  the  public  interest,  while  the  nec- 
essary employees  through  which  it  must  perform  its  du- 
ties are  free  from  public  responsibility  in  connection  with 
the  service  in  which  it  is  engaged? 

"If  these  premises  are  sound,  what  is  the  practical  rem- 
edy to  be  applied  ?  I  would  suggest  that  it  is  to  wTite  into 
the  law  a  legally  established  obligation  and  duty  upon 
every  employee  who  seeks  and  accepts  service  with  the 
transportation  companies  not  to  leave  the  service,  or  com- 
bine with  others  to  do  so,  on  account  of  any  controversy 
thereafter  arising  concerning  any  change  in  the  conditions 


30 


For  the  draft  of  a  law,  proposed  to  amend  the  Industrial  Disputes 
Investigation  Act  of  1907,  see  Railway  Strikes  and  Lockouts  (1916), 
supra,  p.  109. 

[13] 


of  service  or  rates  of  compensation,  except  upon  due  and 
reasonable  notice  to  be  prescribed  by  statute  permitting  a 
sutiicient  length  of  time  for  a  fair  and  impartial  investiga- 
tion and  determination  of  the  matter  in  controversy,  either 
by  arbitration  or  by  some  duly  constituted  public  tribunal." 

The  bill  which  was  introduced  in  the  House  of  Repre- 
sentatives, February  5,  1917,  by  Mr.  Adamson,^^  in  the  Senate, 
February  8,  1917,  by  Mr.  Xewlands,^-  to  amend  an  Act  pro- 
viding mediation,  conciliation,  and  so  forth,  approved  July  15, 
1913:  to  authorize  the  President  to  protect  the  operation  of 
trains  in  time  of  peace,  and  to  take  possession  of  the  common 
carriers  and  draft  their  crews  and  officials  in  time  of  war,  and 
for  other  purposes;  had  some  very  serious  defects.  During  the 
three  months  in  which  the  proposed  Board  are  allowed  to  make 
their  findings,  all  of  which  would  probably  be  required,  there 
is  nothing  to  prevent  a  full  stop  of  railroad  transportation  of 
the  country,  with  the  resulting  overwhelming  misery,  damage, 
injury  and  loss  to  the  whole  people.  In  order  to  allow  pe- 
cuniary pressure  to  be  put  on  the  railroad  companies,  ruinous 
and  disastrous  pressure  is  allowed  to  be  put  on  the  people  of  the 
whole  country,  who  must  be  depri\ed  of  the  necessities  of  life 
in  order  that  the  trainmen  may  secure  more  acceptable  condi- 
tions of  employment.  To  suppose  that  the  people  of  the  United 
States  would  submit  to  the  deprivation  of  the  prime  necessity 
of  transportation  is  a  most  unreasonable  idea.  Long  before 
the  Commission  would  ever  make  its  report,  the  deliberations 
of  the  Board  would  be  forgotten  in  the  suffering  of  the  public, 
and  a  summarv  end  would  have  been  made  to  the  situation. 
The  pressure  of  the  public  need  would  require  that  another 
Congress  give  the  remedy  which  the  late  Congress  refused.  The 
second  objection  is  that  the  bill  makes  no  provision  for  the 
emergency  of  the  cessation  of  transportation  in  time  of  peace. 
In  time  of  war  the  President  is  given  the  power  to  take  over 
the  railroads  of  the  country  and  operate  them.  In  time 
of  peace,  he  can  only  sit  still.  The  emergency  requiring  the 
transportation  of  troops,  military  equipment  and  supplies  of  the 
United  States  in  time  of  war  is  a  serious  thing,  but  it  is  nothing 


31 


H.   R.  20752. 


*•  S.  8201. 


as  compared  with  the  emergency  of  the  entire  cessation  of 
transportation  in  time  of  peace.  The  bill  makes  elaborate  pro- 
vision for  the  smaller  misfortune,  but  leaves  the  pubHc  exposed 
to  the  greater  one.  After  reading  the  bill,  one  is  compelled  to 
ask,  Avhy  is  the  right  of  four  hundred  thousand  men  to  strike 
to  be  preferred  over  the  right  of  a  hundred  million  people  to 
have  the  necessities  of  life  without  interruption?  Have  the 
people  of  the  United  States  no  rights  in  the  matter? 

In  the  report  of  the  Committee  on  Interstate  and  Foreign 
Commerce  of  the  House  of  Representatives,  of  February  6th, 
1917,^^  there  occurs  the  following  interesting  passage: 

******  the  committee  did  not  deem  it  wise  nor  just  to 
prohibit  strikes  and  lockouts,  either  temporarily  or  per- 
manently, without  first  providing  a  peaceable,  civilized, 
si>eedy,  and  just  method  or  tribunal  to  determine  all  dif- 
ferences by  peaceable  means.  Until  such  tribunal  or  me- 
thod can  be  established  it  would  not  be  wise  or  just  to  take 
away  the  right  of  strike  or  lockout." 

The  report  does  not  throw  any  light  upon  the  question  why  the 
Committee  did  not  provide  such  a  method  or  tribunal  instead 
of  leaving  the  employees  as  before,  with  no  remedy  but  to 
strike. 

In  the  report  submitted  by  Senator  Newlands  from  the  Com- 
mittee on  Interstate  Commerce,  February  10.  1917,  to  accom- 
pany Senate  Bill  8201,  the  following  passage  occurs: 


a 


Whilst  a  minority  of  the  committee,  including  the  chairman, 
realize  that  the  strike  is  the  only  effective  weapon  which 
labor  has  thus  far  had  in  enforcing  its  just  claims  and  that 
it  has  been  useful  and  effective  in  accomplishing  needed  re- 
forms as  to  the  hours,  wages  and  conditions  of  labor,  they 
feel  that  the  advance  of  civilization  requires  the  substitu- 
tion of  reason  for  force  in  all  contentions  between  the  State 
and  the  individual  and  between  man  and  man,  as  well  as 
between  nations.  Viewed  in  this  light,  the  strike,  whilst 
thus  far  and  under  existing  conditions  needed  in  order  to 
secure  for  labor  a  just  consideration  of  its  rights,  has  been 
a  process  resulting  in  serious  economic  losses  to  both  em- 
ployers and  employees,  and  in  the  last  analysis,  a  resort  to 


33 


Accompanying  H.  R.  20752. 


[15] 


violence,  it  would  appear  to  be  the  duty  of  Congress  in  its 
control  of  interstate  commerce  to  see  that  a  fair  tribunal 
shall  be  created  for  the  adjustment  of  lalx)r  disputes,  and 
that  when  that  tribunal  is  secured,  the  rig-ht  of  strike,  as 
well  as  the  right  of  lockout,  should  be  suspended. 

"They  feel  that  this  is  particularly  true  regarding  the  con- 
duct of  interstate  transix)rtation,  a  great  public  service,  in- 
trusted by  the  Government  to  quasi-pulMic  corporations,  of 
such  a  nature  that  any  suspension  in  its  operations  for  a 
time,  however  short,  inflicts  grievous  and  unsupi>ortable 
wrongs  upon  society  at  large,  involving  the  paralvsis  of 
production  and  trade,  and  ultimately  suffering,  distress,  and 
starvation.  They  feel  that  the  public  interest  requires  that 
such  a  public  service  should  not  be  subject  to  interruptions, 
and  that  whatever  may  be  said  in  favor  of  the  right  of  strike 
in  other  activities,  no  excuse  can  l3e  presented  for  the  neg- 
ligence of  civilized  society  in  permitting  for  a  moment  the 
great^  highways  of  transportation  to  be  obstructed.  As, 
therefore,  the  governmental  investigation  provided  for  by 
the  reported  bill  is  intended,  first,  to  ascertain  the  facts; 
second,  to  ascertain  the  cause  of  the  difficulty;  and.  third, 
to  suggest  a  remedy  with  the  view  of  producing  an  enlight- 
ened public  sentiment  both  among  the  disputants  and  the 
community  at  large  which  would  result  in  a  peaceful  ad- 
justment of  the  dispute,  they  believe  that  the  right  of  strike 
and  lockout  ought  to  be  suspended  during  this  i>eriod  of 
investigation  and  for  a  reasonable  time  thereafter.  In  this 
view,  however,  they  have  been  overruled  by  their  asso- 
ciates." 

Another  unfortunate  feature  of  this  l)ill  is  that  it  makes  the 
same  officers  who  endeavor  to  conciliate  the  respective  par- 
ties afterward  sit  on  a  trilmnal  to  make  recommendations  for 
a  settlement  of  the  dispute.  When  they  are  engaged  in  the 
work  of  conciliation  it  is  their  duty  to  ascertain,  if  possible, 
from  either  side  how  far  they  would  be  willing  to  go  in  the  in- 
terest of  i>eace.  Obviously,  if  they  have  to  sit  later  as  a  board 
to  make  recommendations  upon  the  merits,  the  contending  par- 
ties will  hesitate  exceedingly  in  giving  this  information,  as  it 
might  be  used  against  them  when  the  final  recommendations 
are  made. 

A  bill  was  introduced  by  Mr.   Sims  ^-^  January  30,   1917,  to 


S4 


H.  R.  20630. 


[16] 


0 


authorize  the  President  of  the  United  States  in  certain  emer- 
gencies to  take  possession  of  and  operate  the  lines  of  a  com- 
merce carrier  engaged  in  interstate  commerce,  and  for  other 
purposes,  which  specially  provides  that  in  case  of  actual  or 
threatened  strike  on  any  railroad  the  President  may  take  pos- 
session of  and  oi>erate  the  road  in  the  manner  most  conducive 
to  the  safety  and  welfare  of  the  public,  afterward  restoring  the 
property  to  its  owners  when  the  public  interest  and  safety  no 
longer  require  the  continued  possession  and  operation  by  the 
United  States.  This  bill  is  much  less  elaborate  than  the  one 
introduced  by  Mr.  Adamson,  and  its  details  could  doubtless 
be  considerably  improved.  What  it  proposes,  however,  is  in 
the  interest  of  the  whole  people,  and  not  of  any  particular  class, 
and  at  least  this  much  protection  ought  to  l)e  given  to  the  pul)- 
lic.  The  bill,  however,  does  not  meet  the  fundamental  mischief 
that  if  there  were  a  general  railroad  strike  the  experienced  men 
would  all  leave  their  posts,  and  the  Government  would  have  to 
make  the  best  shift  it  could  under  the  circumstances.  It  would 
be  just  as  reasonable  if,  during  the  progress  of  a  war,  all  of  the 
regular  troops  of  the  United  States  should  lay  down  their  arms 
and  call  upon  the  Government  to  fill  their  places  with  volunteers, 
or  the  best  way  it  could.  If  anybody  has  to  be  drafted  to  per- 
form a  public  service,  why  not  the  man  who  is  most  fit  ?  Both  of 
these  bills  proceed  on  the  idea  that  nothing  must  be  done  to  pre- 
vent railroad  employees  from  quitting  all  at  once,  by  preconcerted 
airangement,  and  that  it  is  necessary  in  order  for  the  railroad 
employees  to  put  pressure  on  the  railroad  companies,  that  the 
railroad  employees  should  have  the  right  to  stop  transportation 
everywhere  at  the  same  moment.  If  this  hurts  the  public,  it  is 
the  making  of  the  strikers. 

In  H.  R.  20907,  introduced  in  the  House  of  Representatives 
by  Mr.  Lenroot  February  14,  1917,  to  amend  an  act  providing 
mediation,  conciliation,  and  so  forth,  approved  July  15,  1913,  the 
ingenious  provision  is  made  that  it  shall  be  unlawful  for  employers 
to  increase  wages  or  to  compromise  or  adjust  a  controversv  with 
their  employees  in  any  way  that  will  cause  an  increase  in  the 
operating  costs  of  the  employer,  while  official  investigation  is 
pending.     This  would  probably  be  a  very  effective  provision  to 

[ir] 


prevent  a  strike,  but  there  is  still  the  question,  what  would  be- 
come of  the  public  if  a  general  strike  occurred,  nevertheless. 

It  is  interesting  to  observe  that  to  H.  R.  20632,  making  ap- 
propriations for  the  naval  service  for  the  fiscal  year  ending  June 
30,  1918,  the  House  added  a  provision  making  it  unlawful  to  in- 
cite employees  engaged  in  work  for  the  Government  to  leave 
such  work,  or  to  engage  in  strikes,  i>enalties  by  way  of  fines  and 
imprisonment  being  provided. 

A  bill  has  been  introduced  ( House  53S)  in  the  Legislature  of 
the  State  of  California,  which  not  only  provides  for  the  appoint- 
ment of  a  Board  of  Mediation  to  investigate  labor  disputes  and 
suggest  terms  of  settlement,  but  compels  public  utilities  and  their 
employees  to  submit  statements  of  their  disputes  and  differ- 
ences to  the  Railroad  Commission  and  to  await  investigation  of 
such  disputes  before  a  strike  or  lockout  is  called,  and  imposes 
penalties  to  secure  obedience. 

A  bill  has  also  been  introduced  into  the  Minnesota  Legislature, 
House  206,  providing  for  the  appointment  of  a  Board  of  Con- 
ciliation and  Mediation  of  three  members,  and  prohibiting  strikes 
and  lockouts  until  the  investigation  has  been  completed,  includ- 
ing recommendations  for  settlement. 

As  showing  the  point  of  view  of  the  business  men  of  the  coun- 
try upon  this  question,  the  Chamber  of  Commerce  of  the  United 
States  of  America,  as  appears  from  their  Special  Bulletin  of 
February  12,  1917,  recently  submitted  the  matter  to  a  referen- 
dum of  its  members  with  the  following  results. 

The  questions  submitted  by  the  Committee  and  the  result  of 
the  balloting  were  as  follows : 

L  Shall  existing  law  be  so  amended  or  supplemented  as  to  re- 
quire full  public  investigation  of  the  merits  of  every  dispute 
between  railroad  carriers  of  interstate  commerce  and 
their  employees,  to  be  instituted  and  completed  before  any 
steps  tending  to  the  interruption  of  transportation  shall  be 
attempted  ? 

1226^  votes  in  favor. 
18^  votes  against. 

n.  Shall  existing  law  be  so  amended  or  sup|)lemented  as  to 
provide  that  upon  any  board  of  investigation  or  arbitration 
of  disputes  between  railroad  carriers  of  interstate  commerce 

[18] 


*      % 


<     ^  % 


and  their  employees,  the  employers  and  employees  shall  have 
equal  representation  and  the  public,  as  having  paramount 
interest,  shall  have  a  majority  representation? 

WGSYi  votes  in  favor. 
60j/2  voteh  against. 

HL  Should  Congress  establish  a  i:>€rmanent  statistical  divi- 
sion under  the  Interstate  Commerce  Commission  to  study 
and  compile  statistics  relating  to  wages  and  conditions  of 
service  upon  railways,  the  records  and  services  of  this  di- 
vision to  be  immediatelv  available  to  boards  of  investigation 
or  arbitration  considering  disputes  between  railways  and 
the  employees? 

1171  votes  in  favor. 
70  votes  against. 

The  necessities  of  public  service  in  this  country  make  a  strike 
upon  a  railroad  an  economic  crime,  and  a  general  railroad 
strike,  if  persisted  in,  would  inevitably  result  in  revolution,  as 
the  commercial  interests  of  the  country  could  not  endure  the 
cessation  of  transportation.  Hitherto,  the  recurring  contro- 
versies in  regard  to  the  amount  of  wages  have  been  settled  l\v 
temporary  arbitrators,  called  from  the  1:)ody  of  the  people,  and 
disappearing  again,  without  previous  experience  or  the  tradi- 
tions of  permanent  administration.  The  body  which  decides 
what  wages  shall  be,  should  be  the  body  which  controls  the 
earning  of  the  wages,  the  body  which  regulates  the  rates  and 
charges,  which  make  the  payment  of  wages  possible.  No  satis- 
factory solution  of  the  problem  of  railroad  wages  can  be  found, 
short  of  their  control  ])y  the  rate-making  bodies,  established  by 
the  government.  The  settlement  of  wage  disputes  should  be  a 
branch  of  the  activities  of  the  Interstate  Commerce  Commis- 
sion. Only  their  great  powers  are  adequate  to  the  task,  and 
they  alone  are  in  position  to  see  that  the  wages  are  found  in  or- 
der that  they  may  be  paid.^^ 

One  can  hardly    rise  from    a  serious    consideration    of    the 

■''^  See  bill  introduced  by  Senator  Underwood,  December  5,  1916,  S. 
7031,  granting  to  the  Interstate  Commerce  Commission  power  to  fix 
hours  of  work  and  wages.  As  to  whether  or  not  such  an  arrangement 
would  be  constitutional  we  are  likely  to  know  more  when  the  Supreme 
Court  decides  the  pending  case  of  Wilson  v.  New  and  Ferris,  Receivers, 
involving  the   validity   of  the   so-called   Adamson    Law. 


i 


<^-%v 


u^ 


problem  of  labor  disputes  witliont  the  feeling  that  the  legal 
status  of  wage  quarrels  is  today  little  beyond  trial  by  battle. 
Human  genius  has  been  adequate  to  find  a  peaceable  substitute 
for  private  vengeance.  To  create  through  an  international  tri- 
bunal and  international  police  an  efficient  substitute  for  war, 
is  a  plan  which  many  competent  publicists  consider  entirely 
practicable.  If  the  future  holds  out  to  us  a  per^^etual  prospect  of 
petty  civil  wars  between  employers  and  employees,  for  this  is 
what  strikes  really  are  in  their  actual  operation,  it  will  not  l3e 
because  the  Thirteenth  Amendment  stands  in  the  way  of  the 
American  people,  but  because  public  men  are  unwilling  to  sub- 
stitute the  orderly  process  of  a  tribunal  for  the  lawless  and 
cruel  circumstances  of  industrial  war.  It  has  been  observed  in 
the  administration  of  the  Australian  Law  that  the  contendine 
parties,  if  they  could  have  their  own  way  about  it,  would  rather 
have  a  fight  than  a  settlement  of  their  grievances.  The  public, 
however,  at  least  in  that  part  of  the  world,  has  finally  succeeded 
in  having  its  rights  respected  and  is  no  longer  compelled  to 
sufifer  the  lack  of  the  necessities  of  life  in  order  that  a  compara- 
tively small  number  of  citizens  may  have  the  joy  of  combat. 


Chicago,  III. 


Blewett  Lee. 


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